Transcript: Statement of law professor Ronald Noble

House Judiciary Committee hearing, December 9, 1998

Mr. Chairman, Mr. Ranking Minority Member and members of the committee, before I begin my formal remarks, let me extend my thanks to the following people who helped prepare me under these rushed circumstances -- my brother, James Noble, who is here with me today. My research assistant, Russell Morris, from NYU law school is here with me today. My students in my evidence class with whom I spent the last two weeks talking about impeachment, but not the impeachment of a president, the impeachment of a witness -- I have been trying to give them hypotheticals with which they could learn -- from which they could learn. I told them I will be the best prop they will have today.

I'm honored to appear before you today. I will discuss the factors ordinarily considered by federal prosecutors and federal agents in deciding whether to investigate, indict and prosecute allegations or violations of federal criminal law.

I submit that a federal prosecutor ordinarily would not prosecute a case against a private citizen based on the facts set forth in the Starr referral. My experience, which forms the basis of my testimony, is as follows:

I have served as an assistant U.S. attorney, a chief of staff and deputy assistant attorney general in the Justice Department's criminal division during the Reagan and Bush administrations, an undersecretary of the treasury for enforcement in the Clinton administration. And I'm currently a professor at the New York University School of Law, where I teach, as I said, a course in evidence.

NOBLE: When investigating a possible violation of the law, every federal prosecutor must heed the guidelines of the Department of Justice. DOJ guidelines recognize that a criminal prosecution entails profound consequences for the accused and the family of the accused whether or not a conviction ultimately results.

Career federal prosecutors recognize that federal law enforcement resources and federal judicial resources are not sufficient to permit prosecution of every alleged offense over which federal jurisdiction exists. Federal prosecutors are told to consider the nature and seriousness of the offense, as well as available taxpayer resources. Often, these resources are scarce and influence the decision to proceed or not to proceed and the decision on how to proceed.

Federal prosecutors may properly weigh such questions as whether the violation is technical or relatively inconsequential in nature, and what the public attitude is toward prosecution under the circumstances of the case.

What will happen to public confidence and the rule of law if no prosecution is brought or if a prosecution results in acquittal? Even before the Clinton-Lewinsky matter rose, DOJ guidelines intimated that prosecutors should pause before bringing a prosecution where the public may be indifferent or even opposed to enforcement of the controlling statute, whether on substantiative grounds or because of the history of non-enforcement or because the offense involves essentially a minor matter of private concern and a victim is not interested in having it pursued.

Yet public sentiment against an otherwise worthy prosecution should not discourage prosecutors from bringing charges simply because a biased and prejudiced public is against prosecution.

For example, in a civil rights case or a case involving an extremely popular political figure, it might be clear that the evidence of guilt, viewed objectively and by an unbiased fact-finder, would be sufficient to obtain and sustain a conviction. Yet the prosecution might reasonably doubt whether the jury would convict.

In such a case, despite his or her negative assessment of the likelihood of a guilty verdict, based on factors extraneous to an objective view of the law and facts, the prosecutor may properly conclude that it is necessary and desirable to commence or recommend prosecution and allow the criminal process to operate in accordance with its principles.

During the civil rights era, many prosecutions were brought against people for locally popular but no-less-heinous crimes against blacks. However, prosecutors should not bring charges on public sentiment in favor of prosecution when a decision to prosecute cannot be supported on grounds deemed legitimate by the prosecutor.

DOJ prosecutors are discouraged from pursuing criminal prosecution simply because probable cause exists. A number of the witnesses have already addressed this point. Why? Because probable cause can be met in a given case, it does not automatically warrant prosecution. Further investigation may be warranted and the prosecutor should still take into account all relevant considerations in deciding upon his or her course of action.

Prosecutors are admonished not to recommend in an indictment charges that they cannot reasonably expect to prove beyond a reasonable doubt by the legally sufficient evidence at trial. It is one of the most important criteria that prosecutors must consider. Posecution should never be brought where probable cause does not exist and, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person will be found guilty by an unbiased trier of fact.

Federal prosecutors and federal agents, as a rule, ought to stay out of the private sexual lives of consenting adults. Neither federal prosecutors nor federal investigators consider it a priority to investigate allegations of perjury in connection with the lawful, extramarital, consensual, private, sexual conduct of citizens.

In my view, this is a good thing. From a pro-active perspective, who among us would want the federal government to initiate sting operations against private citizens to see if we lie about our extramarital affairs or the nature of our sexual conduct. Imagine a rule that required all federal job applicants to answer the following questions under oath: Because we are concerned about our employees being blackmailed about unusual or inappropriate sexual conduct and because we want to know whether you would be at risk, please name every person with whom you've had a sexual relationship or with whom you've had sexual intercourse during your life. It certainly would be relevant and it certainly might lead to black mail.

Such a question would naturally lead to allegations of perjury responses. Irrespective of the constitutional challenges, from a public policy standpoint, most Americans would object to federal prosecutors and federal agents investigating and prosecuting those cases that came to our attention.

Could we trust our government to make fair, equitable and restrained decisions about how much to investigate any one of these allegations? The potential for abuse and violation of our right to privacy would be great. Indeed, assigning federal agents to interview witnesses, install wiretaps and insert bugs to learn about the private, legal, sexual contact of U.S. citizens would concern us all.

NOBLE: But aggressive prosecutors and agents would do exactly that to make cases again those citizens where prosecution would garner publicity and thereby act as a deterrent. In my view, the biggest target would be politicians.

As a general matter, federal prosecutors are not asked to bring federal criminal charges against individuals who allegedly perjure themselves in connection with civil lawsuits. As a rule, federal prosecutors on their own do not seek to bring criminal charges against people who perjure themselves in connection with civil depositions for the reasons that have already been articulated.

In addition, this would open a floodgate of referrals. Parties, by definition, are biased and it would be difficult to discount the potential bias. By their nature, lawsuits have remedies built into the system. Lying litigants can be exposed as such and lose their lawsuits.

The judge overseeing the lawsuit is in the best position to receive evidence about false statements, deceitful conduct and even perjured testimony. She can sanction violating litigants by initiating civil or criminal contempt proceedings.

Notwithstanding the reasons generally, there are 10 good reasons, taken in combination, which support the view that a career federal prosecutor asked to investigate allegations like those in the Clinton- Lewinsky matter would not pursue federal criminal prosecution to the indictment or trial stage.

One, the alleged perjury occurred in a civil deposition and concerned private, lawful sexual conduct between consenting adults. Two, the alleged perjured testimony was deemed inadmissible by the trial judge. Three, that evidence arguably was dismissed as immaterial by the trial judge. Four, in any event, the alleged perjured testimony was at most marginally relevant.

Five, the alleged perjured testimony did not affect the outcome of the case. Six, the parties settled and the court dismissed the underlying civil suit. Seven, the settlement of the suit prevented the appellate court from ruling on the dismissal and on the materiality of the alleged perjured testimony. Eight, the theoretically harmed party knew of the alleged perjury prior to settlement. Nine, alleged -- and I say, alleged -- political enemies of the defendant funded the plaintiff's suit. Ten, a federal government informant conspired with one of the civil litigants to trap the alleged perjurer into perjuring himself.

Given the above considerations, most federal prosecutors would not want to use taxpayer dollars, federal agents and sensitive federal investigative resources to uncover the most intimate and embarrassing details of the private sexual lives of consenting adults when there is a risk of bias and when there is judge in a position to address the alleged criminal conduct.

The judgment that a career prosecutor might make about an ordinary person might be very well affected by the knowledge that the alleged perjury was committed by the president. That is to be conceded. Even the most experienced fair-minded prosecutor will find it difficult not to pursue allegations of criminal misconduct against a president, a senator, a governor, any member of Congress.

The interest in targeting, threatening and harming the president especially, can be explained in part by the power and visibility of his office. Even a prosecutor with exceptional judgment might be tempted by the challenge of bringing down a president. A prosecutor with unchecked power, unlimited resources and only one target might find the temptation even stronger.

Mr. Chairman, I believe I can conclude in two minutes with the permission of the chairman.

HYDE: Two minutes?

NOBLE: Two minutes.

HYDE: Surely.

NOBLE: Thank you, Mr. Chairman.

COBLE: (OFF-MIKE)

NOBLE: Thank you, Mr. Coble.

It is difficult to think of a fail-safe structure that could protect anyone from allegations of bias in the decision to prosecute or not prosecute the president. Not the attorney-general, the independent counsel, the Justice Department, the FBI, the Secret Service, the federal judiciary, the Congress, the bar and the academy can escape some person or act in their background that could create a conflict or an appearance of a conflict.

No one for or against prosecution would be safe from attack on the merits or from false personal attacks. For this reason, a prosecutor or a committee assigned such a case must strive to be objective, knowing that criticism of bias will be unavoidable.

In a prosecutorial context, a 13-to-10 vote by the grand jury constitutes enough votes to proceed, but reflects that there must be or might be a serious problem with some aspect of the case.

Similarly, a vote for impeachment based on a party-line vote or near party-line vote is a signal that something is wrong or may be wrong with the case, and that the case may not be worth pursuing. This is particularly true where the overwhelming majority of Americans appear to be well informed about the allegations, and unbiased as a group, yet they do not want this president impeached.

While indictments and impeachment proceedings are different, they carry at least two similarities. One, most of us know it when we see the clear cases for criminal conviction and for impeachment. Two, public confidence in the rule of law in our system of government would suffer if we regularly indicted cases or impeached presidents only to have juries or the Senate vote to acquit.

In closing, I believe that the Justice Department got it right and independent counsel Donald Smaltz got it wrong -- indictments and impeachment that results in acquittal ought to be avoided where possible. No prosecutor would be permitted to bring a prosecution where she believed that there was no chance that an unbiased jury would convict. Almost no one in this country believes that the U.S. Senate will convict the president on any potential article of impeachment. Members of Congress should consider the impact of a long and no doubt sensationalized trial will have on the country, especially a trial that will not result in a conviction.

In the end, I am confident that you will give the weighty responsibility that you must discharge serious consideration.

A vote against impeachment need not be viewed as vote against punishment. A Professor Steve Saltzburg noted before you earlier this week, Judge Susan Webber Wright retains jurisdiction of the case wherein the allegedly perjured testimony occurred. She can hold civil or criminal contempt hearings. Of all the arbiters of justice in this matter, she is perceived as being the least bias.

She can punish the president for false and misleading conduct, even if it does not rise to the level of perjury or obstruction of justice. Trust her to mete out the appropriate punishment.